Symon and Whiteley

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYMON & WHITELEY

[2016] FCCA 3501

Catchwords:
FAMILY LAW – Parenting orders – young children – no family violence – significant parental conflict.

Legislation:
Family Law Act 1975 (as amended), pt.VII

Cases cited:

Rice v Asplund [1979] FLC 90-725

Applicant:

MR SYMON

Respondent:

MS WHITELEY

File Number:

CAC 1288 of 2014

Judgment of:

Judge Mead

Hearing dates:

2, 3, 4 & 5 May 2016

Date of Last Submission:

4 May 2016

Delivered at:

Canberra

Delivered on:

5 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Farrah Gesini Dunn

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

Barker & Barker

ORDERS

The parties have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2012 (“the children”).
The children live with the mother.
The children spend time with the father during school term time:
(a)in week one of a two week cycle from after school Thursday to the commencement of school the following Monday in accordance with the current rotation; and
(b)in week two of a two week cycle from after school Thursday to the commencement of school Friday in accordance with the current rotation.
The children spend time with the father during school holiday periods (defined as commencing at the conclusion of the last day of the relevant school term and concluding at the commencement of school on the first day of the next school term) as follows:
(a)for either the first or second half of each of the short term school holidays, with the commencement to coincide with the time the children would ordinarily spend with their father in accordance with the terms of paragraph 3(a) hereof, provided that, if in the second half, the time shall conclude no later than 12 noon on the last day of the holiday period; and
(b)during the Christmas school holidays in 2016/17 as follows:
(i)for the first half of the period between the conclusion of school on the last day of the 2016 school year and 10:00am on 24 December 2016;
(ii)from 10:00am on 26 December 2016 to 10:00am on 2 January 2017 and each alternate week thereafter between the same times PROVIDED HOWEVER that should the 2016/17 Christmas school holiday period consistent of an uneven number of weeks, the children shall spend one half of the last week or part thereof with each of their parents with the children to return to the care of the mother by no later than 12 noon on the last day of the school holiday period; and
(c)during the Christmas school holidays in 2017/18 as follows:
(i)for the second half of the period between the conclusion of school on the last day of the 2017 school year and 10:00am on 26 December 2017;
(ii)from 10:00am on 2 January 2018 to 10:00am on 9 January 2018 and each alternate week thereafter between the same times PROVIDED HOWEVER that should the 2017/18 Christmas school holiday period consistent of an uneven number of weeks, the children shall spend one half of the last week or part thereof with each of their parents with the children to return to the care of the mother by no later than 12 noon on the last day of the school holiday period; and
(d)during the Christmas school holidays in 2018/19 and each alternate year thereafter;
(i)in accordance with the terms of paragraph 4(b)(i) hereof;
(ii)from 10:00am on 26 December 2018 to 10:00am on 9 January 2019;
(iii)from 10:00am on 23 January 2019 for one half of the remainder of the school holiday period; and
(e)during the Christmas school holidays in 2019/20 and each alternate year thereafter;
(i)in accordance with the terms of 4(c)(i) hereof;
(ii)from 10:00am on 9 January 2020 to 10:00am on 23 January 2020; and
(iii)for the second half of the remainder of the school holiday period concluding at 12 noon on the last day of the school holiday period.
Notwithstanding any other orders made herein, the children spend time with their father from 9:00am to 5:00pm on Father’s Day in each year PROVIDED HOWEVER that should Mother’s Day fall on a weekend the children are in the care of their father pursuant to the terms of this order, the children shall return to the care of the mother at 9:00am on Mother’s Day and remain with her until the commencement of school on the following day.
The children shall have telephone communication with the parent who does not have their care pursuant to these orders on each of their birthdays and on each of their parents’ birthdays between 8:00am and 8:15am on the relevant birthday by way of the parent who does not have care of the children on that day telephoning the children on the mobile telephone of the other parent with that parent to ensure the children are available to take the call and that the mobile telephone is charged and turned on to receive the call.
The children spend time with the father between 12noon and 4:00pm on the Saturday closest to the birthdays of each of the father’s children A and B in the event they are not already in the father’s care on that Saturday pursuant to these orders.
The parties utilise:
(a)a communication book; and
(b)a medication book
which shall pass between the parties via the children’s bags at each handover and which shall be used to record respectful communication as to matters concerning the health and welfare of the children during their time in the care of each of their parents and to record the administering of all and any medication during each period of time the children are in the care of their respective parents.
The party with whom the children are not living pursuant to the terms of these orders shall be permitted to attend the children’s extra-curricular activities.
Both parties shall be at liberty to obtain from any school or schools attended by X and Y from time to time copies of all school reports, newsletters, invitations, flyers for school events, and school photograph order forms upon their own request and at their own expense and be at liberty to attend at all events at the school or schools attended by either child from time to time to which parents are specifically invited.
The parties will provide an authority to the children’s treating medical practitioners authorising the release of information to the other parent regarding the children’s medical treatment.
Each parent will contact the other of them as soon as practicable in the event of the following involving the children or either of them:
(a)a medical emergency;
(b)a child’s non-attendance at school; and
(c)a serious illness of a child.
The parents ensure that the children communicate with the other parent via FaceTime or Skype on at least one occasion each week.
The mother shall forthwith attend a post-separation parenting course offered by Marymead, such as “Keeping Kids in Mind,” “Talking With Your Kids,” or similar, and provide a certificate of her attendance at same to the father’s solicitors within 14 days of the completion of such course.
Each parent shall notify the other of them forthwith of any serious illness or injury affecting the children with each parent to be at liberty to contact any doctor or hospital treating the children to obtain information.
Each parent shall notify the other of them of the name of any general practitioner, paediatrician, or other specialist who provides treatment to the children whilst the children are in that parent’s care.
Each parent shall notify the other of them of any referral to a specialist medical practitioner received by them for the children or either of them and each parent shall facilitate the other parent also attending the specialist appointment for the child.
The parties be restrained and injunctions are hereby granted restraining each of them from:
(a)saying unkind or uncomplimentary things about the other of them to or in the presence or hearing of the children or either of them or allowing anybody else to do so;
(b)denigrating the other party’s family or members of the other party’s household to or in the presence or hearing of the children or either of them or allowing anybody else to do so; and
(c)discussing these proceedings or matters arising from these proceedings with or in the presence or hearing of the children or either of them or allowing anybody else to do so SAVE AND EXCEPT any expert medical or allied health professional engaged for that purpose.
In the event that either party wishes to travel with the children more than 100 kilometres from Canberra such that the travel will involve overnight stays they shall provide to the other of them:
(a)not less than 14 days’ notice of their intention so to do;
(b)a contact telephone number or numbers on which they and/or the children will be available whilst absent from Canberra; and
(c)an itinerary of the planned travel including places of accommodation.
In the event that the travel will result in the children being away from Canberra for a period of 3 days or more, the parent travelling with the children shall facilitate the children communicating with the other parent on at least one occasion every 3 days by way of Skype, FaceTime or telephone.
In the event that disputes arise between the parties concerning parenting issues, they shall attend at community based mediation prior to issuing any further proceedings with respect to parenting orders.
All parenting applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Symon & Whiteley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1288 of 2014

MR SYMON

Applicant

And

MS WHITELEY

Respondent

REASONS FOR JUDGMENT

This matter comes back before me this afternoon for judgment with respect to children’s issues only, and I am taking the approach of delivering my judgment as an ex temp judgment. I reserve the right to edit it, not as to content but to structure if necessary at a later date, and I understand that it might not be as polished as if it were a written judgment, but I think it is very important for Ms Whiteley and Mr Symon to have an answer to their dispute, rather than waiting longer. They are in, as Ms Tonkin says, high conflict, and decisions need to be made so that they can try to start the repair work that is going to be necessary over a sustained and quite long period of time.
By way of introduction, Mr Symon is 48, and Ms Whiteley is aged 46 years. They commenced cohabitation in (omitted) 2003 in rented premises, and at that time as well as the parties Mr Symon’s two children from his previous relationship, A, who was then eight, and B, who was not quite six, also formed part of the household. This was initially on an alternate weekend type basis, but over the years increasing such that it was effectively a shared care arrangement that Mr Symon had in place with Ms K, his former partner.
The parties had two children of their own, and they are the children who are the subject of the dispute before the Court now. X was born on (omitted) 2010 and he is now aged six years. Y was born on (omitted) 2012 and is now aged three and a half. The parties separated under the same roof in or about May 2014, with the father leaving the premises in late August 2014.
The father instituted proceedings with respect to parenting issues on 12 September 2014. From the time of the parties’ physical separation in August 2014 until interim orders were made in this court by Judge Hughes in October 2014, the children spent time with their father at the parties’ home, mostly in the presence of the mother.
On 14 October 2014 consent orders were made providing for the children to have regular daytime time with their father both at the former matrimonial home and away from the home on four days in each week.
On 5 February 2015 further consent orders were made. That followed upon the parties receiving assistance from a family report prepared by Mr L dated 2 February 2015. The order introduced overnight time for X and Y with Dad, such that between the date of the order on 5 February 2015 and April 2015 the children spent one overnight time, as well as, of course, daytime with their father, then between April and July 2015 the time increased to two overnight periods per fortnight, and then as from July the children were to spend three overnight periods per week. Commencing in September the children were to spend time with their father for four overnight periods per week, from after school Thursday until before school the following Monday in week 1, and from after school Thursday until the start of school Friday in week 2. That is the current arrangement in terms of the children’s time with their father.
As well there was an order made for time during school holidays, with the children’s time during school holidays to be shared equally with their parents. Ultimately there was an order made for the Christmas holiday time to be week-about on an equal shared basis.
The parents, for the purposes of these proceedings, each prepared proposed orders. The Court is not bound by the orders proposed by either of the parties. There was a very dramatic shift, I might say, in the orders proposed by the mother at the commencement of these proceedings, filed as recently as late April, and those upon which her case was conducted. The parties of course prepared for this trial against a backdrop of having received a further report from Mr L in November 2015.
It was unfortunate that by then, and apparently continuing, the parties were and are completely entrenched in their dispute. That is the most significant feature of this particular matter.
In terms of the relevant legal principles, Part VII of the Family Law Act 1975 (as amended) provides the legislative framework within which the Court determines the parties’ competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards children’s orders, and the principles underlying those objects are set out in section 60B(2).
The objects of the Act are: to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence; to ensure that children receive adequate and proper parenting to help them achieve their full potential; and, to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare, and development of their children.
The principles underlying those objects are as follows: that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare, and development, such as grandparents and other relatives; parents jointly share duties and responsibilities concerning the care, welfare, and development of their children; parents should agree about the future parenting of their children; and, children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order. To determine the best interests of the child, the Court must consider the factors set out in section 60CC(2) and section 60CC(3) of the Family Law Act.
Section 61DA of the Family Law Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.
By the time the evidence in this trial commenced both parties sought orders for equal shared parental responsibility. Their cases were presented on the basis of a dispute as to the amount of time that the children should spend with each parent. In the event that an order is made for equal shared parental responsibility, the Court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents, and whether it is reasonably practicable for this to occur.
If the Court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent, and whether that is reasonably practicable. The Act defines what is meant by “substantial and significant time”, and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.
Substantial and significant time includes weekend time, non-weekend time, time that is important to the parents, and time that is important for the children, such that children have an opportunity to have their parents fully involved in their lives to the maximum extent possible and practicable. The issues of practicability revolve around physical proximity, and, primarily, the capacity of the parents to actually support an order for either equal or substantial and significant time. All of those issues must be considered in this case against the backdrop of the requirement that the parenting order that the Court makes must be in X and Y’s best interests as determined in accordance with the provisions of section 60CC of the Act.
As I say, the parties, by the time the trial commenced, were ad idem with respect to an order for joint parental responsibility. I find that such an order is in the children’s best interests, and that it is not rebutted by issues of domestic violence and abuse. There is no evidence to suggest that it is not in the children’s best interests. These are the matters referred to in section 61DA(2) and (4).
I am somewhat concerned that the mother’s concession with respect to joint parental responsibility was somewhat made through “gritted teeth”, but on the evidence before me I would have made that order in any event. These are two parents who both love their children and have a genuine interest in their child’s lives, their wellbeing, and their best interests.
I turn then to section 60CC(2) which is referred to as a section concerning the primary considerations when determining what is in a child’s best interests. The first subsection is the benefit to the child of having a meaningful relationship with both of the child’s parents.
These are children who enjoy time with both of their parents. That is abundantly evident by the material each of the parties have put in their affidavits as to the activities that they enjoy with the children, that the children enjoy with them and the interaction that they have with the children. The Court is assisted in that regard by the observations of Mr L, particularly on page 24 of his second report. Both parties in the final orders that they propose do set out orders that could only be described as orders for substantial and significant time.
Section 60CC(2)(b), refers to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. This is really the nub of the mother’s case. It is her firm belief, and I find that to be so, that the children are at risk in the care of the father if his son, A, is in his care. I am satisfied that she does not take the same view with respect to the father’s child, B. I find the belief that the mother has is very deep‑seated.

It was clearly formed during the relationship where, on the evidence, she found A’s behaviour and difficulties very, very challenging. Indeed, it clearly had a very significant impact on the relationship between the parties, and from the father’s perspective led to the breakdown of their relationship.
She is worried about A’s interests in anime. She is concerned about his drawings that have exhibited violence towards women and sadistic actions towards women. She is concerned that this reflects an ongoing interest that A has in these sorts of matters, including violent pornography.
She was worried over the years about A’s diagnosed OCD, about A hearing voices, which is referred to in one of the medical reports, to his suicidal ideation expressed at the age of nine years and to significant difficulties that he had at school, including a reluctance to attend school at all. These matters are of course well documented. Much evidence was called in that regard by the mother from various doctors and psychologists, in particular Mr S, who has seen A over many years.
The fact of the matter however is that A is now 20 years old. His general practitioner for the last 15 years, Dr C, tells us in a report that as at 9 November 2015 she thought A to be much improved. She described him being on a mild level of medication with no symptoms of thought disorder. A had reported to her that he was taking his medication and was in a much more stable mood.
It is not unreasonable for the mother to have some concerns about A, but I do not accept that A is the risk to the children that the mother believes him to be.
There is no evidence of the children having been impacted on by any behaviours of A. The evidence in terms of X and Y’s relationship with A is that it is a positive relationship as described by Mr L, and by X himself, in particular, to Mr L.
Turning to section 60CC(3)(a) and the views of the children, these children are too young to have views upon which the Court would place any significant weight. I am however mindful of their discussions, and X’s in particular, with Mr L as to the positive nature of his relationship with each of his parents and his brothers and his sister. He expressed more interest in her it would appear in the second report than the first, but this is a little boy who, quite frankly, loves everybody who is around him. He loves his mum. He loves his dad. He loves his sister. To the extent that I place any weight on his views, this is a child who, I am sure, thoroughly enjoys time with both of his parents.
As to the nature of his relationship with each of his parents and other persons, including grandparents or other relatives, there is no doubt at all that X and Y’s primary relationship is with their mother. She has been the main caregiver of the children since their birth. That is not to downgrade any significant role that the father also played in caring for the children, both prior to separation and post separation, but their primary relationship is with the mother. They are still young children and that relationship is not something that should be ignored because, as Mr L said, that gives a stable base from which to move out.
I am satisfied that the children also have good relationships with A and with B. There was little evidence about other extended family members, but the evidence that was there seems to suggest that they enjoy extended family relationships on both sides.
As to the extent to which each of the child’s parents has taken or failed to take the opportunity, firstly, to participate in making decisions about major long term issues in relation to the child, there does not seem to have been any difficulties about the parties organising which school X goes to and which kindy Y goes to.
In as much as it could be described as a major long term issue, there is some concern about the mother taking the children to a general practitioner, obtaining a mental health plan, and then taking the children to a psychologist without any consultation with or advice to the father. One can only wonder what benefit could be obtained from such a course in circumstances where the psychologist would be providing therapeutic input to the children based on only one side of the story. This could not possibly provide give a balanced approach to any form of therapy, and would be unlikely to help the children. It would be even worse if what the psychologist did was take a history from the parent bringing the children in and then conduct therapy based on that history, particularly in a case such as this where it is clearly the mother’s view that any behavioural issues exhibited by either of the children are attributable to the time that they spend with their father.
As to the extent to which the parents have taken the opportunity to spend time with the child, the orders have, in the main, been adhered to. A difficulty arose during the April 2016 school holidays when the mother failed to comply with the order and took the view that the children should not spend the time as provided for in the order with their father.
It is unfortunate that she took upon herself the decision to fail to comply with that order because, as Mr Millar said in his submission, the children in those circumstances were denied the time to which they were entitled with their father during those holidays pursuant to existing orders. That however seems to have been the only time that there has been a problem with the orders and the parties complying with those orders, such that the time the children spend with each of them is in accordance with the orders. Communication with the children – these are still very young children – communication by telephone and the like is always fraught with difficulty for such young children.
As to the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child, there is no evidence that would persuade me that both parents do not do what is required of them in terms of maintaining the children.
As to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or person with whom he or she has been living, under the mother’s proposal there would be a reduction in the children’s time with their father in the short term, leading back up to a resumption of the current time in about 18 months’ time.
In the father’s proposal, the children’s time with each of the parties would remain pretty much the same as it is now until about 18 months’ hence when he would propose that the children’s time with each of their parents be equalised.
I am not satisfied that either of those proposals would meet the needs of these children. X enjoys his time with his father. He enjoys his time with his brothers when he sees them. One would wonder why it would be to his benefit to reduce the time with his father and how that change would be explained to him, because it would be a significantly less amount of time that he would spend with his father. I am not satisfied on the evidence that such a change would be in X’s best interests.
The mother is proposing the change primarily because, as I say, she has a very firm belief that X’s challenging behaviours at school, apparently parading naked, threatening to kill C’s sister, threatening to light fires and the like, are attributable to the time that X spends with his father, that it is too much, and that it is destabilising for him.
I have had the opportunity of seeing both of these parties in the witness box. I could not agree with Mr L more wholeheartedly than to say that the very likely cause of the behaviours being exhibited by X in particular at this point in time is because he is well aware of the extreme level of conflict between his parents. It must be making him feel dreadful. He is also aware that his mother was very unwell last year, and so it appears he is really trying to do a balancing act keeping everybody happy. When you are only six years old that must take a lot of energy, and perhaps make you act out in some way sometimes that you might not do otherwise.
These are not children who do not enjoy their relationships with each of their parents. They are not children who do not have parents that are completely capable of providing appropriate care for them. They are children who are caught in conflict. I do not consider that a reduction of X’s time – I refer to X because he is the one that we have been concentrating on in terms of his challenging behaviours –with his father would be of benefit to him. Indeed, it may be quite distressing for him, and may lead him to a belief that his father poses some threat to him and to his wellbeing. That could not possibly be in his best interests in circumstances where he shares a close and loving relationship with his father.
Likewise, a proposal to move to equal shared parenting time would be a significant change for these children. They would go from a primary home base with their mother to an equal shared base. That would be a change that the children would have to negotiate in circumstances where I am less than satisfied that 18 months down the track these parents are going to work much more cooperatively than they are at the moment. Taking into account the demeanour and presentation of the mother in particular during this hearing, I am satisfied that she has a very long way to go before she is able to communicate with the father in a manner that is not overbearing and “invasive” (I think was the word used by Mr Millar).
The parties’ personalities are vastly different. The mother is very tense. She has been unwell, and so there is some allowance for her presentation in terms of the very significant personal challenges she has faced last year and continuing this year. I find that does not however completely account for the differences between the parties.
The father has a much more laissez-faire approach to life generally and to the day to day care of the children. There is no evidence to suggest that approach has been detrimental in any way to the children. The only way however that equal shared parenting time in my view works well for children is where parties are cooperative, can mutually agree matters and can make changes to accommodate children’s forever changing needs, particularly young children. These parties have disagreed about so many fundamental things that I could not see a way forward to an equal shared parenting time at any time in the foreseeable future.
I am well aware from the submission of Mr Millar that failing to make such an order raises the prospect of further applications being filed at a later time. I am also mindful of the provisions of what we might call the “Rice & Asplund” rule where the Court would have to be satisfied that there was some real reason why the matter should be reopened to litigate something like equal shared parenting time at a later date. This has to involve something more than the normal day to day changes in children and parents’ lives.
I do not consider there is any practical difficulty and expense associated with X and Y spending time with each of their parents or communicating with them.
As to the capacity of each of the child’s parents and any other persons, including any grandparent or other relative of the child, to provide for the needs of the child, including emotional and intellectual needs, as I have said, these are two perfectly capable parents.
The mother has much criticism about the father’s parenting of A. I have no doubt at all that A was extremely challenging as a child and indeed, as a young man. B’s problems should not be ignored. He has also had significant problems in terms, particularly, of his academic progress and ability to progress.
I find, on the evidence, that the father has attended quite well to A’s needs. He seems to have sought help for A when it was needed. I accept the evidence of Mr S that it was in blocks of time to address particular issues. That seems remarkably sensible, or A would have been at therapy almost constantly for years. It would seem sensible that there be periods of time where things can try and settle and A get on with his life. I do not consider that the father has ignored those issues at all.
It is just a reflection of the different attitudes to parenting of the mother and the father. If one looks at the material that the Court now has about A now at the age of 20, he seems to have come through some very difficult times and be slowly but surely growing up. One can only hope that upward progress continues. He is attending upon his general practitioner. He is taking his medication.
The father has always been proactive in making A’s appointments. A was not, at his age and with his difficulties, able to make his own appointments and the like. I am quite satisfied as to the father’s capacity to provide for the needs of X and Y, including their physical needs, their intellectual needs, and their emotional needs. There is no evidence that the father presses the children for information about the mother, or puts any pressure on the children in terms of moving between the two households.
I have significant concern about the impact on the children’s emotional wellbeing of the mother’s current psychological presentation. She has clearly been having significant assistance herself since about late 2014. The Court does not know what particular issue she was discussing with her psychologist, but she has clearly had a lot of challenges to face. She has had her own health issues during 2015, but prior to that and after the parties’ separation she has been reluctant to facilitate the children’s relationship with their father. I find that as we sit here today much of the mother’s evidence about her preparedness to facilitate a close and loving relationship between the children and their father is based on her understanding that to say otherwise would cause her significant difficulty.
I find that at this stage the mother does not genuinely support the children’s relationship with the father. I find she has no confidence in his parenting capacity, and quite frankly believes that the time they spend with their father puts them at risk. I accept that she has been driving past the father’s house for no good reason other than to try and check on the children.
I accept that many of the messages that she sends to the father when the children are with him are unnecessary and invasive. It is simply not necessary for the mother to know what time the children go to bed every night, whether they have a bath every night, what they have had for dinner and the like. Whilst they are in the care of the father he is caring for them. There is no evidence, other than an issue about croup at some time, that the children have suffered any ill effects from the time with their father any more than that they have suffered ill effects from the time with their mother.
The mother is a very competent, capable parent. She looks after the children well. She attends well to their day to day needs. She needs to accept however that if she does not try to settle her own emotions a little better than she is managing at the moment, the children are going to continue to be under a significant amount of pressure.
X is six, as I have said and Y is three and a half. They have much to gain from time with their father, the activities they enjoy with him, the things that dads can provide in terms of emotional input and the different interests that dads and mums have, and they have much to gain from time with their mother, and the things that they enjoy doing with and learn from her. These are children who need to have the opportunity of having regular time with each of their parents and to enjoy and gain benefit from the input that they can receive from each of their parents.
As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the children’s parents, I am satisfied that these are parents, as I say, who love their children. They love spending time with them. They love caring for their children. They have attended well to all of those responsibilities. I find however that the father is far more supportive of the children’s relationship with their mother than the mother is of their relationship with their father.
I do not accept, as I have said before, that any behavioural difficulties being exhibited by X at this time can be laid directly at the feet of the father. There are a myriad of reasons as to why those issues may be occurring and it may well be of assistance to X to have some help in that regard, but the only way that help will be beneficial is if it is supported by both parents, with an agreed counsellor who can have input from both parents and attempt to assist X to find a pathway through the warring parents.
I have already said that I am not satisfied that this is a matter that involves family violence, and already referred to the prospect of possible future proceedings in not looking at equal shared parenting time, but, quite frankly, that is a matter for another day.
The parents each provided draft minutes of order at trial, with the main differences being whether there is a slight reduction in time and then a build‑up back to the current amount of time as at January 2018, predicated on Y going to kindy at that time, or whether things should stay as they are, and change to equal shared parenting time at that same time. I have already indicated that I do not consider either of those proposals to be in the best interests of the children.
The evidence before me is that the children are enjoying the current time with each of their parents. The evidence before me is that each of the parents is looking after the children well and attending to their needs well during the time that the children spend with them. There is no evidence before me that would suggest that the difficulties faced by X in more recent time are because he is spending five nights a fortnight with his father. It may be, as I say, that there are any number of reasons for his behaviour, but the evidence does not support a finding that it is because he is spending that time with his father.
In those circumstances I find that the time should stay the same, that is, four plus one: four overnights one week; one overnight the other. I find that that should be on a final basis. I find that the school holidays should be shared, and I am not satisfied that there needs to be an order that the father not leave X and Y unsupervised in the presence of A or B. The father is well aware of A’s challenges and B’s challenges. He has been attending to them for years. He loves X and Y. There is no evidence before the Court that would suggest that the father would ever place X or Y at risk whilst in the care of their older brothers.
I am satisfied that the relationship between X and Y and their older brothers is a good relationship. It is clearly not an incredibly close relationship because there is a very big difference in the ages of B at 17 or 18, A at 20, and the little ones at six and three and a half, but all indications are that the children enjoy time with their older brothers. Mr L talked about, as Ms Tonkin said, the difference between surveillance and a supervisory role.
I find that the father would attend to adequately providing a supervisory role, and would take into account the young age of the children, namely that they are still at an age where they need to be protected and looked after, but would also facilitate, as much as possible, the children enjoying time with A and B. The fact of the matter is that the children’s relationship with their older siblings will outlast that of their parents if everybody lives to three score and 10.
They are important long term relationships. If they are not fostered now then those relationships will not solidify to the extent that they need to do to give X and Y long term support from an extended family. They are, after all, their brothers and sisters.

For those reasons, I intend to make the following orders.
ORDERS DELIVERED
Because I want them back to Mum if it happens to be the second week by 12 noon on the Sunday to get them ready for school again.
ORDERS DELIVERED
Because it varies all the time. It depends whether school finishes on 12 December or 15 December or whenever, so that is why I cannot actually pick a number of days.
ORDERS DELIVERED
In the 2016/17 and 2017/18 holidays, you will deduce from that that it is week-about from 26 January, provided, however, that any days that remain after an even division of the weeks would be divided evenly. So if it was – say there was three and a half weeks left, that they would – four and a half weeks left – sorry – they would each have two weeks week-bout, and then they would have a couple of days each in that last week.
ORDERS DELIVERED
So it would go 26 December to 4 January, then the other party would have 4 January to 18 January, and then the remainder divided in the way that I said, and that is to facilitate people being able to go away on holidays for a two week period. By then the children will be that much older, Y will have had a year at kindy by then, and two weeks away from either parent, I am satisfied the children could manage.
ORDERS DELIVERED
I do not intend to make any orders with respect to the children’s time with either parent for either the children’s birthdays or the parents’ birthdays. My view is that those orders, not just in this matter but just about every other matter I make an order in, are more to satisfy the parents than the children, and what you have is children running around trying to divide their time at the end of the day or the beginning of the day with each of their parents when, in fact, they could have a far more relaxed celebration on an appropriate day or weekend day, after school one day or weekend day closest to, and these are children in this particular case that spend very regular time with each of their parents.
There are not long gaps of time between when they see each of their parents, and so I think the children’s interests will be best met by no specific orders other than telephone communication at 8 am on the relevant day. I think school will probably start at quarter to 9 or something, so 8 am is chosen as the time to have a nice early in the morning call without disrupting the day.
ORDERS DELIVERED
My view is that it is very important for them to be able to celebrate A and B’s birthdays with them. A and B can celebrate X and Y’s birthdays on a day wherever it falls when they are with Dad, and this would be, as I say, on a Saturday. Sometimes the children will be with Dad anyway, so there is no need to make the order, but if they are not, just for four hours from 12 noon to 4 pm, and that is to be able to have lunch and a bit of a play. And those orders about telephone communication on the children and parents’ birthdays and the provision for A and B’s birthdays, I think, are about orders 6 and 7.
ORDERS DELIVERED
The mediation order will be at the end at the order, and it will be in slightly more general terms than that.
ORDERS DELIVERED
And, as I say, that is a standard order that I make.
Paragraphs 16 and 17 will be in terms of paragraphs 14 and 15 of the father’s draft minute.
ORDERS DELIVERED
In terms of interstate travel, the order that I intend to make will equally apply to both parties, and taking into account the particular geographic location of Canberra.
ORDERS DELIVERED
As I have said, I am not making any orders in relation to A or B being supervised, and nor am I intending to make an order – I do not consider it is in the children’s best interests to make the order the mother proposed about the children being unwell, certified as unwell by a doctor, and then not going into the care of the other parent. As far as I am concerned, that is just a recipe for contravention after contravention after contravention, and one of the things that I think courts have to be particularly concerned about is to try and make orders that do not give opportunities for contravention applications. They are of no benefit to the children or the parties, and in this particular case, I would be concerned about contravention applications.
I have already said I am not making orders about the children’s birthdays, and I will put an order at the end of this that, as I say, requires the parties to attend for mediation at a private mediation before any further proceedings were instituted with respect to children’s issues, and that finalises the children’s issues.
School holidays commence at the conclusion of school on the last day of each school term, and conclude at the commencement of school on the next school term.
Children’s orders are drafted.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 6 October 2017

[2016] FCCA 3501

5 May 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies